Secrecy is Everywhere



Lawrence R. Velvel		Massachusetts School of Law
Raymond B. Vickers		Attorney
David O. Whitten		Auburn University
Anthony D'Amato*		Northwestern University School of Law
Colin Tait*		University of Connecticut School of Law
Lyle Denniston		The Boston Globe
Marie M. Fortune		Faith Trust Institute
Jane E. Kirtley		University of Minnesota
Susan Dente Ross		Washington State University
Paul Harris*		Lingnan University
Barbara Krug*		Erasmus University
Jian Yang		University of Auckland


* Indicates an LTV interview with the named individual.
Massachusetts School of Law at Andover

Introduction

Lawrence R. Velvel

The genesis of this issue of LTV lies in a simple fact. Secrecy is all around us. It is everywhere. Yet, outside of what are called matters of national security, it is rarely remarked. Outside of the national security arena, it is not usually a subject of public discussion, and its existence rarely seems even to be publicly recognized. The media deals with it relatively infrequently, I've not heard of college or graduate school courses or books on it, and there seem to be no law school casebooks or courses dealing with it. Yet it often is pervasive in banks, large corporations, small businesses, police agencies, academic institutions, health organizations, legislatures, courts, executive branches and agencies, accounting offices, law offices, scientific laboratories, and so forth. In fact, it is very difficult to think of any area of life where it does not exist. Are there any?

It is very difficult to understand why such a pervasive societal phenomenon should have been the subject of so little study or scrutiny. Is the answer that we are all conditioned to accept the secrecy that is all around us, that we are all conditioned to believe it desirable and a good thing? This is hard to believe, although I do not pretend to know or even suspect the answer to the question of why there is so little study of the pervasive secrecy which exists outside of the national security arena. The one thing that I do feel confident in saying is that the failure to deeply study such a pervasive and deeply consequential phenomenon represents a serious failure of political science departments, sociology departments, history departments, law schools, and other relevant academic departments and disciplines (not to mention think tanks). If this issue of LTV accomplishes nothing else, I would hope that it is a catalyst to the creation of a broad, necessary intellectual field that might be called secrecy studies. Certainly that field's lack of study to date, plus its crucial importance in every walk of life, make it a subject in which young, ambitious scholars could make their mark.

Bank Secrecy Should be Ended

Raymond B. Vickers

During the recent speculative mania, America's leading banks funded yet another cycle of greed, corruption, and insider abuse. Not since the Great Depression did so many individuals suffer such significant losses. But depositors did not have to feel the pain caused by the savings and loan debacle of the 1980s: their deposits were insured by the federal government, and Congress bailed out the S&L industry. So the impetus for sweeping reform that would have opened the system to public scrutiny never gained momentum. And the absence of such scrutiny—the secrecy which instead prevailed—was what made possible the investor losses of more billions of dollars caused by recent corporate misconduct. Sadly—because this need not still be happening—these losses parallel all too closely the losses sustained by investors and depositors in the 1930s, when the markets collapsed and the banking system was decimated by an epidemic number of failures.

As investors struggle to recover today, the public has once again been left in the dark about the complete breakdown of the bank regulatory system. This is the still untold story of Enron. Where were all the regulators when Citigroup and J.P. Morgan Chase & Co. were financing Enron's special purpose entities with billions of dollars in elaborately disguised loans? They had front row seats from which to witness the bizarre schemes, along with the power to stop them. They also had the clear mandate to remove the unscrupulous bankers who promoted the loans and, further, to ban them from the industry—all of which they should have done, and none of which they did. However, their inaction should not come as a surprise, especially after the spectacular regulatory lapses involving S&L promoters such as David Paul and Charles Keating during the 1980s, and the regulatory failures of the 1930s.

Although a 1932 federal appeals court complained that regulatory powers at the time were "too sweeping and imperialistic," it nonetheless upheld those powers, conceding that in bestowing them, "unquestionably Congress contemplated the upheaval and cataclysm to which the financial structure is subject, the importance of its stability, and the necessity which exists for action unhampered by technicality in emergency." Subsequently, Franklin Roosevelt's New Deal reforms expanded these powers, and soon after the S&L crisis, Congress reorganized the regulators and greatly increased their powers, to the extent that by the 1990s, America had in place the most far-reaching regulatory system in the world. This, despite the Gramm-Leach-Bliley Act of 1999, which repealed one of the most significant of the New Deal reforms, the Glass-Steagall Act's separation of most aspects of commercial and investment banking. But Congress failed to provide for public accountability, with the result that today the supervision of the banking system still depends exclusively on regulators who operate in secret, behind closed doors.²

As we now know, this supervision failed miserably in reining in the participants in the Enron fiasco. After Enron's bankruptcy, Senator Carl M. Levin (D-Michigan) accurately described the company's deals as "sham contrivances . . . to make Enron look more financially healthy than it really was, violating accounting standards." He declared that "by concocting elaborate schemes of so-called structured finance with no legitimate business purpose other than tax and accounting manipulation, Citigroup and J.P. Morgan Chase helped Enron deceive the investing public as well as Enron employees and stockholders." Indeed, Enron's court-appointed examiner, Neal Batson, concluded that both banks "had actual knowledge of the wrongful conduct" and that they "aided and abetted certain Enron officers in breaching their fiduciary duties." But Batson's report was too little, and way too late. Had the details of these transactions been disclosed in the early 1990s by the regulators who were examining the banks at that time, stock analysts and credit-rating agencies would have been compelled to issue timely investor alerts about their riskiness, and the disaster could have been avoided.³

In agreeing recently to a settlement of some $300 million as penance—certainly not as fair recompense—for the misdeeds of Citigroup and J.P. Morgan Chase, the regulators and prosecutors spared Enron's bankers the ordeal of a public trial. Such a criminal prosecution would have spotlighted the bankers' complicity in devising fraudulent schemes to hide $8.3 billion in loans by falsely reporting the debt as cash flow from operations. And settling, instead of seeking jail time for the bankers, also saved the jobs of all the regulators who failed to stop the madness

Although refusing to cooperate with the authorities, J. P. Morgan Chase nevertheless issued an apology to Manhattan District Attorney Robert M. Morgenthau: "We have made mistakes. We cannot undo what has been done, but we can express genuine regret and learn from the past." An e-mail written by a Chase senior officer clearly reveals the bank's culpability: "We are making disguised loans, usually buried in commodities or equities derivatives (and I'm sure in other areas). With a few exceptions, they are understood to be disguised loans and approved as such." Other e-mail exchanges between Citigroup's bankers described in explicit detail how they were "manipulating cash flows" with financing schemes at Enron.⁴

Morgenthau agreed that his office would not prosecute the banks or their officials for their willful misconduct, but added that "there is no place in free and fair markets for players who think they can continue to conduct risky business under a cloud of deception and secrecy." Jacob H. Zamansky, a New York lawyer representing investors, protested the deal: "The message being sent by the regulators is 'write a big enough check and you can get away with anything.'"⁵

Higher Education’s Pervasive Ethos of Secrecy

David O. Whitten

Institutions of higher learning are supposedly dedicated to the search for truth. Notwithstanding, colleges and universities are shrouded in obfuscating secrecy. Trustees are selected in secret, and much of their business is carried on behind closed doors in defiance of open-meeting laws. Faculty hiring, tenure, and promotion decisions are hidden from public scrutiny. And one of the most perplexing questions in America today confronts college-seeking young men and women and their parents: how do college and university admissions committees pick and choose the hundreds who will be next year's freshman class from the thousands who seek a place in their institution? Secrecy in accreditation pervades higher education, too.

Secret Selections

Trustee selections, in the public and private arenas, are made secretly, and the motivations for them rarely have anything to do with qualifications for guaranteeing the best interests of the state or the institution. Because secrecy surrounds trustee selection, confirmation, and service, citizens and voters have to determine in ignorance whether elected officials are putting the best people in positions of authority over educational institutions. They are also in the dark as to how and why these supposed protectors of the public good are chosen.

Trustees are charged with guaranteeing that public and private investments in institutions of higher learning produce the results intended. Individually and collectively, Americans herald college and university education as necessary for private success and the commonweal. Yet the selection of men and women to steer the all important colleges and universities is based not on characteristics associated with the goals of those institutions but on political considerations and financial contributions.¹

State governors usually have a say in who is nominated for a seat on the boards of trustees of state-supported colleges and universities. In some instances the governor's role is uniform for all state schools, and in others the role varies from board to board. In Florida, where the Board of Regents was recently discarded, Governor Jeb Bush has a powerful voice in the selection of new board members for schools throughout the state. In 2003 Governor Rod Blagojevich of Illinois appointed new members to the University of Illinois board of trustees from the ranks of his political supporters. One, Robert Sperling, a 1969 graduate of the university, is an attorney with Winston & Strawn, a firm that hosted a fundraiser and donated $15,000 to Blagojevich's gubernatorial campaign. Another is Niranjan Shah, co-founder of Globetrotters Engineering, a firm credited with donating $30,000 to Blagojevich. And the third is Devon Bruce of Power, Rogers & Smith, the generous provider of $135,000.²

In Alabama the governor sits on every board, but his or her role in nominating trustees is not uniform from school to school. For example, until a 21st century constitutional amendment created a five-member committee to nominate trustees for Auburn University, the governor hand-picked nominees and was permitted to do so secretly. Although the governor is not required to divulge his or her reasons for nominating, the press usually suggests the reasons and attaches them to large campaign contributions or political power that could help or hurt the executive administration. The new nominee selection committee dilutes the governor's power to choose a candidate, but because the committee meets behind closed doors, the process remains shrouded in secrecy.³

Once nominees are announced, the state legislature—usually the senate—confirms or rejects the names that come out of the selection process. State legislative politics produce myths and legends from which trustee confirmations are not excluded. In Alabama, Auburn's trustee nominees must be confirmed by the senate—that feature of the trustee-selection process did not change with the constitutional amendment. Senators have their own political agendas, and they may not align with the governor's or that of a selection committee, in which case the nominees may be rejected. What is more likely is refusal of the senate to act on nominations.

There are arguably fewer politics surrounding trustee-selection for boards of private colleges and universities. At public schools, politics and contributions dominate the selection process, and the contributions may be to the school, but the more important ones are to political campaign funds. Contributions also sway private trustee selection, but the money is more likely to fund the school than a political campaign. It is likely that the politics of private school trustee nomination are as convoluted as they are for public schools, but the press has less access to private colleges and universities, where open-meeting laws are not always applicable.⁴

Secrecy in Courts

Are there any confidential matters, intellectual property, trade secret, national security cases, etc., that would justify closed courtrooms, sealed papers, and the like?

Hardly ever. Keeping things away from the people is not something that I . . . want. I don’t want people to "protect me" by keeping information away from me.

In the Pentagon Papers case, for example, the government wanted to keep everything secret. But the Court finally said it should come out; it’s part of our history, even though it embarrassed the administration. Now if the court had kept those papers secret, it would have been very difficult for our ability to understand the Viet Nam War and all the decisions that went into it.

Occasionally, there are trade secrets, but very rarely. Very rarely is a trade secret much of a secret. Very rarely is the name of a person going to jeopardize an agent in the field in a spying mission. These are very overrated kinds of examples.

I think the public has a right to know, and the public should decide what to do about these things. The courts shouldn’t put a muzzle on anything. You can compare it to freedom of the press. With freedom of the press, won’t the government get criticized, won’t some people be embarrassed, etc.? Of course. But we lose much more by not having that freedom.

How frequently do you discover parties to lawsuits having ex parte contact with judges or other decision-makers?

I think it happens in very small towns and places that have country clubs including judges and practitioners. In a large city, it doesn’t happen very often. It’s more of a problem where judges run for office, and practitioners contribute huge sums of money to their campaigns, as in Texas. I have no doubt that the judges there engage in payback when their contributors are involved in cases. On the whole, however, we’re pretty good in this country for the amount of socializing that goes on between judges and lawyers. There is a lot less [ex parte contact] than one would think, simply because everyone is so afraid of doing it. So we’re not too bad on that issue, I think.

Secrecy in Courts

Are there any confidential matters, intellectual property, trade secret, national security cases, etc., that would justify closed courtrooms, sealed papers, and the like?

I would think that there are some. For some there might be good reasons. The problem with the Connecticut approach was that nobody knew about it, except a few judges and a few lawyers, and it was sort of irregular. The Superior Court did pass some new rules as a result of this, effective immediately I think, on how to improve the process. One of the major problems was that it was an informal word-of-mouth process. Some judges knew you could seal cases, there were no criteria, some lawyers knew it and could do it for their clients, while other lawyers couldn't. Some judges didn’t even know about it. And so at least now it's in the rule book with procedures. And the procedures are fairly detailed, but the criteria for sealing are not spelled out.

Here is what the new rules say: The judge can order sealing if he concludes that such order is necessary [and] "to preserve an interest which is determined to override the public interest in viewing such material." That's a very non-specific standard, "to preserve an interest which is determined to override the public interest in viewing such material." They don't define or give examples there, so it really leaves a lot of discretion in a judgment.

In Massachusetts School of Law's lawsuit versus the ABA, the judge held a "hearing" in which only the ABA and its lawyers were allowed to be present and offer evidence. How unusual is that?

I don't know enough about this, but I haven't heard of somebody doing a one-sided thing that never surfaces. There are some ex parte hearings, as you know, and one side goes in without the other, but they tend to be temporary—temporary injunctions, for example, until both parties can talk about it. So there are some things that are ex parte, but they're generally preliminary and not definitive, and there's a hearing promptly thereafter.

Lyle Denniston

The shadowy world of foreign intelligence-gathering—the American government's most secret and least accountable enterprise—is now the Bush administration's main legal weapon in the war on terrorism. Secret wiretapping of terrorism suspects, approved by a secret court that applies a relaxed constitutional standard of review, is generating reams of criminal evidence for use in prosecuting terrorist cases.

In fact, much of the evidence being handed over to federal prosecutors now dates back several years and is only now becoming available because the Justice Department, under Attorney General John Ashcroft, has made energetic use of a change in the law that was approved by Congress in the PATRIOT Act, enacted after the attacks of September 11, 2001, on the World Trade Center and the Pentagon.

Now, all U.S. attorneys' offices across the U.S. "are looking at the closed and open intelligence investigations to review for criminal purposes nationwide," a U.S. attorney in Illinois, Patrick Fitzgerald, told reporters at a briefing in early June at Justice Department headquarters in Washington. "I'm not forecasting who, what, when and where we'll bring whatever in the future, but it's not limited to any one U.S. attorney's office."

Fitzgerald was describing the rich store of potentially decisive criminal evidence that is produced by an ongoing government activity that, from one end to the other, is deeply shrouded in secrecy.

The evidence already lodged or newly accumulating in government intelligence files has been gathered by telephone and e-mail intercepts and by physical searches approved by a court—the Foreign Intelligence Surveillance Court—that has been in existence since 1978 but works only in secret and usually makes a public statement only once a year, to disclose how many secret wiretapping or search orders it has approved.

It has been busy over the past year or so, at the urging of Ashcroft's Justice Department. In 2002, it approved 1,228 secret wiretaps—a record number. The previous high was 1,012 in 2000, the only other time in its history that the number rose above 1,000.

The FIS Court has sometimes modified Justice Department requests, but it has never turned one down. It issues its approvals after hearing from only one source—the Justice Department—and thus the targets of this secret surveillance may never know that they are being monitored. No defense lawyer ever has a chance to try to counter a request by the department for a secret electronic or physical search for foreign intelligence—and now, for criminal evidence.

In order to obtain a wiretap or search order from the FIS tribunal, the department must show sufficient reason (technically, "probable cause") to believe that the target is "a foreign power" or an "agent of a foreign power." It also must certify that the reason for the eavesdropping is to obtain foreign intelligence information. There is no requirement—as there is under the Constitution's Fourth Amendment for domestic wiretapping or search orders used in ordinary criminal cases—that the government spell out any suspicion that the target is engaging in any criminal activity. And the government has no obligation to notify the target that surveillance has occurred.

Until the Bush administration took office, the eavesdropping approved by the secret court did not allow a transfer of evidence to criminal prosecutors at the Justice Department. The Department, beginning in 1995, had in place a policy that was intended to create a symbolic "wall" between those gathering foreign intelligence and those preparing criminal cases for prosecution. FIS wiretaps, approved without observing the strictures of the Fourth Amendment, were not to be used as a substitute for eavesdropping seeking criminal evidence under warrants that had to satisfy the Fourth Amendment.

In March 2002, the Bush administration asked the FIS court to change the governing procedures, to permit foreign intelligence information to be handed over to criminal prosecutors pursuing terrorism suspects. The FIS Court, in May 2002, refused to approve the change—the only significant rebuff of the Justice Department in the court's 24 years of existence up to that point.

The Reverend Dr. Marie M. Fortune

Secrecy is different from privacy. Everyone has a right to privacy in his or her personal life. But for a professional, secrecy becomes a problem. Secrecy most likely functions to cover up questionable if not unethical conduct.

In the situation of clergy abuse, secrecy functions on two levels. The abuser works hard to maintain secrecy about his/her boundary crossing with a congregant in order to avoid disclosure and to isolate the victim. Once there is disclosure, the judicatory often works to keep the complaint, its proceedings, and the outcome secret in order to "protect the church (or other religious body) from scandal." Actually, it is more likely to do this to protect itself and even the perpetrator from accountability.

If a complaint is made, the people directly affected need to know that an investigation is underway. So a congregation should be informed. And once the investigation is complete and the complaint is adjudicated, the congregation, as well as the wider system, needs to be informed of the outcome. This transparency is what undergirds the integrity of the process and can restore people's faith in the institution in spite of the misconduct of a minority of its representatives.

One of the most disturbing pieces of news in the fallout from the sex abuse scandals in the Roman Catholic Church is the revelation of a change in legal strategy on the part of the Church. In May of 2002, the Washington Post reported:

Where once the church tried to quietly settle cases, according to church and plaintiff lawyers, it is now pursuing an aggressive litigation strategy, hiring high-powered law firms and private detectives to examine the personal lives of the church's accusers, fighting to keep documents secret and engaging in new tactics to minimize settlements.¹

The "church's accusers" are adult survivors of sexual abuse at the hands of pedophile priests—priests whom it appears were secretly protected from legal consequences, retained in ministry with the knowledge of their superiors, and moved from parish to parish. The result is a list of hundreds of children abused by someone they were taught to trust.

From east to west, we are learning information that some dioceses not only kept these crimes a secret for decades, but they also misrepresented facts to survivors and used depositions to harass and blame victims for their victimization.²

If this were any other institution, the contradiction would not be so profound. But this is the church—supposedly the faithful followers of Jesus, who said, "Let the little children come to me, and do not stop them; for it is to such as these that the kingdom of heaven belongs." Now one has to wonder, who is running these dioceses? It sounds like the lawyers are in charge and scripture and theology be damned.

The American Executive Branch: A Culture of Secrecy

Jane E. Kirtley

Thus raged John Mortimer’s fictional English barrister, Horace Rumpole, as he wrapped up another successful defense, this time of a career civil servant, accused of violating the British Official Secrets Act² by allegedly leaking to the press details of the excessive consumption of tea and biscuits by staff at the Ministry of Defense. Despite appearances to the contrary, his client, the hapless Miss Rosemary Tuttle, was, in her own words, "jolly well innocent."³ Her boss, Oliver "Batty" Bowling, had framed her for the crime in an attempt to discredit her testimony as a witness to his own breaches of the secrecy statute. Once unmasked by Rumpole, Bowling had no choice but to do the honorable thing and throw himself under a tube train in the Covent Garden underground station.

A comparable tale of woe might be less likely to occur here on the other side of the pond. At least as of this writing, the United States has no "Official Secrets Act" of its own, despite the best efforts of some members of Congress to enact one.⁴ Attorney General John Ashcroft, hardly a proponent of the free flow of information,⁵ acknowledged in a report to Congress in October 2002 that there was no need for one. The Justice Department, he opined, had plenty of ammunition "to prosecute those who disclose classified information without authorization, if they can be identified."⁶

But with or without an Official Secrets Act, an aggressive culture of secrecy nevertheless permeates the executive branch of the federal government. Following the terrorist attacks of September 11, 2001, the Bush administration has waged a relentless campaign to curtail public access to information. The first salvo was the Ashcroft memorandum on implementation of the Freedom of Information Act,⁷ which made clear that the Justice Department would encourage and support agencies that made liberal use of the nine exemptions to the statute. This was followed closely by President Bush’s executive orders gutting the Presidential Records Act of 1978 to preclude the release of records from the Ronald Reagan presidency⁸ and amending the system of classifying national security information to allow, among other things, for documents already public to be reclassified as secret.⁹ Then came the chilling reports that "sensitive" data were quietly being removed from public electronic reading rooms, and that librarians in government depository libraries were being directed to destroy "by any means" CD-ROMs containing a report on water supply data that had previously been publicly available.¹⁰

And, for the most part, the public seemed indifferent at best, and at worst, complicit. In a report released to mark the first anniversary of the September 11 attacks, the Pew Internet and American Life Project reported that 67 percent of Americans believe the government should seal up information that might assist terrorists, even if the public has the right to know that information.¹¹

Susan Dente Ross

Apocalyptic language abounds, and it would be tempting to join the chorus of those asserting that the secrecy in the administration of George W. Bush is an exceptional assault on the public's right to know. Indeed, there is some evidence that the Bush Administration hides an unprecedented amount of information critical to enlightened participation by the polity and to the proper functioning of democracy.

However, it is hardly original of the Bush Administration to shroud itself in secrecy. It is neither creative nor novel for the federal government to cloak its secrecy initiatives in the mantle of national security. Some would argue that it has ever been thus. Scholars have documented secrecy and deception from the Constitutional convention through successive administrations from the nation's founding to the present.¹ Indeed, Daniel Patrick Moynihan suggested that government's "culture of secrecy" is a bureaucratic imperative compelled by the incentive to consolidate and preserve power.²

The Costs of Secrecy

Such secrecy is antithetical to democratic government. It inhibits or impairs informed, robust citizen debate and effectively eliminates government by "the consent of the governed." Moreover, my reading of the evidence suggests that rampant secrecy does not protect our nation. As the U.S. Supreme Court noted in 1937,

The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.³

The costs of excessive secrecy are manifest. Government secrecy is a form of regulation that constrains the marketplace of ideas and impedes the functioning of democracy. It is self-perpetuating, grows through accretion, and, like most regulation, tends to outlive any utility. At the broadest level, secrecy perpetuates ignorance. Neither citizens nor policymakers are informed; decisions rest upon half-truth, speculation, and emotion. Errors multiply. Secrecy also breeds apathy in the body civic. A public that is not informed is not engaged. Citizens who do not know what is going on cannot support government initiatives.

In a culture that hides critical information, open information is devalued. When information is tightly controlled by the few, all information becomes suspect to the many. Everything is subject to spin. No yardstick enables the body politic or its representatives to evaluate the veracity of disclosed information. At best, that which is shared is understood to represent only a part of the truth. At worst, shared information loses importance because the powerful have determined it to be insufficiently momentous to warrant classification.

Secrecy and SARS

The government has been historically, and is by its nature still, fearful of social unrest of any kind. One government minister pointed to Hong Kong some weeks ago as an example of how not to act. He pointed to Hong Kong people wearing masks as a sign of unnecessary public paranoia. Of course, it became all too apparent that the people's skepticism was justified.

Indeed, recent demonstrations and riots against placing suspected or actual SARS sufferers in rural areas is indicative of what the government feared.

In addition to avoiding unrest that might threaten its legitimacy, the government was and is preeminently worried about China's image as a place to invest and do business. They hoped to contain the virus, or at least have China be perceived as being largely untouched, in order not to interrupt business and economic growth and development. Growth of this sort is of course the key to the CCP's legitimacy and hold on power, so anything that threatens growth—and hence legitimacy—is seen as the gravest of threats to "national security."

How much less devastating could the outbreak have been if China hadn't covered up the early cases?

I can't say with authority regarding the health aspect of this question, but the adverse impact on China's reputation would have been much less. Most level-headed business people and outside observers have assumed right along that China's economic figures are highly suspect—partly out of manipulation, partly out of the inability of the central government to know for sure what is happening across China. But their handling of SARS has put this into sharp focus. In this respect, the damage is severe, at least temporarily—although starry eyed investors, most of whom have yet to make much if any money in China, will no doubt see this as only a temporary setback.

Secrecy and SARS

Why do you think the Chinese government covered up the SARS cases?

Before I answer, I'd like to make two general remarks. First, SARS is first of all a medical problem in which a previously unknown virus caused an atypical form of pneumonia that only later was called SARS. Thus, the unusualness of what was first regarded as a flu had to be detected before it could be reported. As the New York Times [May 4, 2003] summarized, it is only in hindsight that the outbreak of SARS can be dated as early as November 2002 in the province of Guangdong. The same article mentions the fact that on November 27th, schools and factories had already been closed down in the same province. That this information was not translated from Chinese cannot be held against the provincial government which was acting on the diagnosis that it would have to deal with a severe outbreak of a normal flu.

How similarly cautious organizations outside China reacted to the first information can be seen by the fact that the World Health Organization started its SARS "Outbreak Centre" on February 10th while the global alert was not given until March 12th. One reason for this delay in the case of the WHO as well as in the case of the government in Beijing was to prevent panic reactions.

However, the Chinese government had an additional motive for not disclosing information about a new epidemic disease, namely the Communist Party Congress which was scheduled for March in Beijing. A Communist Party Congress means that several thousand people from all over China travel to Beijing to attend a meeting whose single purpose is to praise the achievements in the last couple of years.

Unsurprising, it was shortly after the Congress ended that on April 2nd the government officials gave up their policy of stonewalling, if not obstruction, when they officially allowed the WHO and other specialists to visit Guangdong.

My second general comment to this is, before a new virus such as the one causing SARS is identified, any attempt to control the spread of the disease is to be welcomed. However, as the case of AIDS should warn us, there is a fine line between identifying risk factors geographically or socially, and stigmatization. To claim that SARS is a Chinese phenomenon crosses this line. A new virus can pop up anywhere and at anytime, and even at different places at around the same time.

Moreover, there is no such a thing as a single Chinese government. It is worth emphasizing that Hong Kong has its own legislation as do Taiwan and Singapore. All three governments and administrations acted differently, and—in the case of Hong Kong—with admirable efficiency and openness.

In other words, the problem of secrecy is the problem of a Communist Party-State.

To answer your original question, this is how the system in the People's Republic of China works. It is a highly bureaucratic system in which to report only good news is regarded as good bureaucratic practice. A second reason was the intention not to cause panic, in particular during the time when the Communist Party Congress convened in Beijing.

Understanding the SARS Crisis in China

Jian Yang

The outbreak of the deadly severe acute respiratory syndrome (SARS) epidemic is nearing its end. It is now widely known that Chinese authorities carefully controlled the release of information about the outbreak in the first few months. With more openness, the outbreak might have taken a different course. It is time for us to reflect on what has happened. A host of questions emerge when we look back. What actually happened at the initial stage of the outbreak? Why did Chinese authorities cover up? What is the economic cost? What are the political repercussions? More important, what is the likely long-term impact on China's political development? This article is an attempt to answer these and some other questions.

It is believed that the SARS epidemic erupted in the Guangdong province of southern China in November 2002. In December, a 32-year-old chef from Heyuan City, 100 miles northeast of the provincial capital Guangzhou, was admitted to the Heyuan People's Hospital, having fallen sick with pneumonia. A few days later, eight doctors and nurses fell ill with a similar untreatable pneumonia. Hospital officials were alarmed and reported to the Heyuan Public Health Department on January 1, 2003. The next day, the Department reported the infectious disease to the provincial health bureau, which immediately sent out an expert team to investigate it, deciding it was a pneumonia of previously unknown cause. On January 2, another chef with pneumonia arrived at Guangzhou's Zhongshan Hospital. Thirteen medical staff members were infected, who in turn infected 15 others in Zhongshan as well.

Authorities in Guangdong province did not act swiftly. They waited almost one month before sending out warnings of the outbreak to hospitals. The reason was that the end of January was the Chinese New Year holiday, and the provincial authorities did not want concerns about the virus to reduce people's spending.

The surge of cases really began in early February when sick and frightened patients from small cities went to more advanced hospitals in Guangzhou. On February 6, Guangdong health officials recorded 45 new cases of atypical pneumonia in one day. On February 8, the province reported the situation to the Communist Party leadership and State Council in Beijing. State Council "leaders" commented on the report, and the next day they sent a vice health minister to Guangdong to investigate.

News of the disease reached the Chinese public in Guangdong through a short text message, sent to mobile phones in Guangzhou around noon on February 8. "There is a fatal flu in Guangzhou," it read. This same message was re-sent 40 million times that day, 41 million times the next day, and 45 million times on February 10.² People soon started to panic purchase ban lan gen (a Chinese medicine which is often used to protect people from virus), white vinegar (believed to be able to kill germs/virus when steamed), and surgical masks.

Despite the outbreak and worries about the virus among the public, Zhang Dejiang, the Chinese Communist Party's (CCP) provincial secretary and a loyalist of the then President Jiang Zemin, continued to impose a ban on news media reporting about the disease until February 10, when the Propaganda Department of Guangdong Province (PDGP) allowed news media to report the outbreak, but with no more than 400 words. The Guangdong-based Southern Metropolitan News, one of the most popular newspapers in China, angered the authorities by publishing a much longer report. On February 11, the Guangzhou Daily reported that the virus had infected 305 people and that five had died. Guangdong authorities held a press conference on that day. At the press conference, the head of the provincial health bureau said that atypical pneumonia was not an unpreventable or untreatable disease and that the outbreak was under control. People felt assured and the panic purchasing eased.